Torts Flashcards
Battery
D intends to cause contact with P’s person
D’s conduct causes such conduct
The conduct causes bodily harm or is offensive to P
Assaualt
D intends P to anticipate, imminent, harmful and offensive contact, and D’s affimrative conduct causes P to anticipate such conduct
IIED
D by extreme or outrageous conduct, intentionally/recklessly causes P severe emotional stress
False Imprisonment
D intends to confine another within a limited area, D’s conduct causes P’s confinement or D fails to release P from confinement despite a duty to do so and P is conscious of the confinement
Defenses to Intention Torts Involving Personal Injury
Actual- P willing for conduct to occur
Apparent- D reasonably believes that P actually consents
Implied- D is justified based on prevailing social norms or D has nor reason to believe P would not consent
Emergency
Self Defense
D must reasonably believe that the force is:
necessary and proportionate to the force is is intentionally inflicting
Defense of Third Persons
Reasonable belief that defendant party entitled to use force to defend self
Immediately necessary
Defense of Property
P’s intrusion is not privlidged; D reasonably believes that P is intruding and D can prevent it by means used; D asks P to stop such or request would be useless dangerous; means used are proportionate to value of interest protecting; and means used not intended to cause death or serious injury
Privilege to Arrest- Felony Arrest
Permitted if crime was actually committed and reasonable to suspect the person committed it
Misdemeanor Arrest
only if committed in presence of arresting party and if breach of peace
Assisting police in arrest
Ok if private actor reasonably believes police need help and police conduct is privledged
Merchant’s Privledge
Sell or goods or services privilege to use force for the purpose of :investigating potential theft; recapturing personal property or facilitating arrest
Merchant’s use of force must be
i. on or near premises
ii. reasonable
iii. reasonable duration
Trespass to Chattles
Intentional interference with P’s right to possession by disposing of or meddling with P’s chattel
Conversion
Intentional act
Interference with P’s right to Possession
So serious that it deprives P the use of chattle
Trespass to land
Intent
Physical invasion
Proper P
Private Nuisance
Substantial and unreasonable interference with another’s use or enjoyment of his land
Public Nuisance
Unreasonable intereference with a right common to the general public
Affirmative Duty to Act
Assumption of duty
placing another in peril
by contract
by authority
by relationship
by statute
Duty of Care Common Carriers
Highest duty consistent with practical operation of business’
Bailor
Gratuitous- duty to warn bailee of known dangerous defects
compensated- duty to warn bailee of defects that are known or sholud have been known had the bailor used reasonable diligence
Bailee
Gratuitous- liable only for gross negligence
Compensated- must exercise extraordinary care
mutual- must take rasonable care
Sellers of Real Property Duty
Duty to disclose known, concealed, unreasonably dangerous conditions;
liability to third parties continues until buyer has a reasonable opportunity to discover and remedy defect
Negligence Per Se
Cirminal or regulatory statute imposes specific duty
D neglects the duty
D liable to anyone in the class for people intended protected by statute
For the harms of the type the statute was to protect against
Defenses to Negligence Per Se
Compliance impossible or more dangerous than non compliance
Violation reasonable under the circumstances
Statutory vaugeness
compliance with federal regulation pre-empts
Res Ipsa
Establishes inference of negligence sufficient to avoid dismissal
P’s harm would not have ocurred if D used ordinarily occure (no injury would occur but for D’s negligence)
P is not responsble for injury
P’s injury in D’s exclusive control
NIED
P was within zone of danger
Threat caused emotional distress
Manifestation of physical symptoms (majority view)
NEID- Bystander Recovery
A p outside the zone of danger can recover if
i) closely related to person injured
ii) present at the scene
iii) personally observed or percieved the injury
majority requires physical symptoms
Vicarious Liability- Direct liability
negligent hiring, negligent firing, negligent supervision
Dram-shop liability
liability that stems from serving/over serving alcohol or serving alcohol to a knowingly intoxicated person
Defenses to Negligence
Contributory fault
Comparative fault
Assumption of Risk
Strict Liability
Dangerous Activities; Animals and Defective/dangerous products
Strict Liability Elements
Absolute duty to make P’s person or property safe
Actual and proximate Causation
Damages
Abnormally Dangerous Activities
Not commonly enged in; inherent, foreseeable and highly significant risk of harm
(s/l limited to harm expected from activity)
Wild Animals
SL for harm done by wile animals
Sl for injuries caused by fearful reaction
Abnormally Dangerous Animals
SL for injuries if knows or has reason to know dangerous propensities abnormal for the animals category or species and harm results.
Trespassing Animals
Oner stricly liable for reasonably foreseeable damage of trespassing animals
Products Liability- Negligence
Duty- reasonable care owned to any forseeable p
Breach- failure to exercise reasonable care in inspection or sale
Causation- factual and proximate
Damages
Strict Products Liability
